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Reliability of hair drug tests up for debate

The lack of consensus on the validity of hair tests should prompt Ontario courts to stop relying on Motherisk results in child protection cases, lawyer says.

In a 2011 article about hair analysis he co-authored with Motherisk founder Gideon Koren, pictured here, Motherisk manager Joey Gareri wrote that because of the effect of alcohol-based hair products, “The risk for false-positive results appears high when monitoring a female population."

A British High Court, a U.S. government department and international toxicologists have raised questions about the reliability of hair-strand tests that are routinely accepted in child welfare cases in Ontario as evidence of parental drug or alcohol abuse.

Among the list of experts who have commented on the limitations of hair tests, such as those used by the Hospital for Sick Children’s
Motherisk
laboratory to detect alcohol abuse: Motherisk manager Joey Gareri.

Because of the effect of alcohol-based hair products, “The risk for false-positive results appears high when monitoring a female population,” Gareri wrote in a 2011 paper he co-authored with Motherisk founder and director, Gideon Koren.

It is a body of evidence, according to Ottawa lawyer Cedric Nahum, that should prompt Ontario’s courts and children’s aid societies to stop relying so heavily on hair tests when making child protection decisions.

“State interference involving the possible removal of a child from parental custody can constitute a restriction of the right to security of the person,” stated a paper Nahum presented at a conference in Ottawa last month. “Such an interference should not be based on a test that has been demonstrated to result in bias and yield false positives.”

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Concerns about the reliability of Motherisk’s alcohol and drug hair tests have been mounting since October, when the Court of Appeal overturned the cocaine-related convictions of
Toronto mom Tamara Broomfield
, after fresh evidence cast doubt over the science Motherisk presented at trial.

Sick Kids
has defended
the analysis in the Broomfield case and expressed confidence in the Motherisk program, which the hospital estimated to be worth millions, according to documents obtained through a freedom of information request. In response to a detailed list of questions from the Star on Tuesday, a spokeswoman said Sick Kids had “nothing to add at this time.”

Before the Broomfield case had raised lingering questions about Motherisk’s current testing methods and potential implications for past cases, Nahum had doubts of his own about the use of hair tests in general.

In an interview on Tuesday, Nahum said his firm prepared the paper on “problems with hair drug testing” for a conference on child protection issues because he is concerned that “We are relying on information that is really quite questionable.”

“I don’t believe hair testing is at a stage where it should be relied on by the courts,” he said. “Maybe things will be different in the future, but we’re not quite there yet.”

The paper, written by articling student Miriam Martin, claims that drug and alcohol “testing and interpretation practices remain unregulated and far from standardized in Canada.”

Two studies published in scientific journals suggested there may be a racial bias to these tests, because drugs appear to be incorporated more readily into darker-coloured hair, he notes. There is also evidence that the way substances are incorporated into the hair of a single individual may vary from strand to strand.

In
a paper published in 2011
, Gareri and Koren reviewed the effect of hair products in the cases of nine people who were identified by a test called FAEE to be “chronic alcohol abusers.” However, they claimed “moderate or no alcohol consumption.”

The study, which was also co-authored by a researcher in Luxembourg, showed regular use of hair products with ethanol content as low as 10 per cent “can potentially elevate FAEE results above the recommended cut-off to determine heavy drinking behaviour.”

Another alcohol hair test Motherisk uses, called EtG, to establish “a history of excessive alcohol consumption” was “unaffected” by alcohol-based hair products, the study found. But the researchers recommended “a cautionary approach” when using the EtG test “in providing a history of any alcohol consumption until further studies are conducted.”

Alcohol hair test results issued by Motherisk in 2012 show the lab used both FAEE and EtG tests in a case of a mother who claims the tests were inaccurate. The Star cannot independently verify the results.

She told the Star Motherisk also provided a one-page “interpretation” document. The document noted the “possible influence of hair care products on results,” and recommended avoiding the use of alcohol-based hair products for three months before the hair test.

Two Toronto lawyers told the Star the interpretation document is the same one they have received with Motherisk hair test results.

In a newsletter to children’s aid societies in December 2009, Motherisk stressed the importance of providing “meaningful interpretation of test results,” and said it had increased consultation staff by 300 per cent to meet rising demand for this service.

The newsletter said research on the use of FAEE hair analysis to detect excessive alcohol use showed “the test corroborates social workers’ suspicion of alcohol use well.” The brief report did not mention the effect of alcohol-based hair products.

Ontario family lawyers and a former family court judge have told the Star that the validity of Motherisk’s drug and alcohol tests is generally unchallenged in child protection cases. However, other jurisdictions have taken more cautious approach.

In the U.K., a local child welfare agency in the London area stopped using alcohol hair tests after conflicting results tied up a child protection case for eight months, and nearly caused “catastrophic” consequences for the children involved, according to a 2010 High Court decision. (In that case, the judge observed, “the hair testing evidence … failed the parties and in particular the children.”)

In the U.S., meanwhile, the Department of Health and Human Services decided in 2008 that more analysis was needed before adding hair testing and other alternative specimens to its mandatory guidelines for workplace drug testing.

Ron Flegel, a director in the workplace programs division, said on Tuesday there were “technical and scientific questions about hair testing.” The government is currently conducting further research on hair drug testing.

Last year, six Boston police officers were reinstated after testing positive for cocaine use, as Nahum observed. The Massachusetts Civil Service Commission found that positive hair tests alone were not enough to fire a tenured public worker.

Ontario’s Attorney General Madeleine Meilleur has said the province is “reviewing” the Court of Appeal decision in the Broomfield case, but has not provided a timeline for the review.

Broomfield, 31, was found guilty in 2009 of giving her toddler a near-fatal dose of cocaine, in part, based on Koren’s testimony. Koren said hair testing showed the boy had regularly ingested very high doses of cocaine for more than a year leading up to the 2005 overdose, which left him brain damaged.

The hospital
has not said
what test it is currently using to test for cocaine or how many other child welfare and criminal cases relied on the same type of analysis the lab presented in the Broomfield case.

Broomfield served more than half her seven-year sentence before she was released from jail last year pending appeal. She has dropped her appeals of other child-abuse convictions related to her son. The Court of Appeal did not comment on how the boy got the drugs.

Clarification - November 21, 2014:
This article was edited from a previous version to clarify that the paper presented by Cedric Nahum was written by Miriam Martin, an articling student at his law firm.

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